Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Catesbaea melanocarpa, 49212-49228 [07-4061]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 166 (Tuesday, August 28, 2007)]
[Rules and Regulations]
[Pages 49212-49228]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-4061]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU76


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Catesbaea melanocarpa

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (the Service), are 
designating critical habitat for the endangered plant Catesbaea 
melanocarpa (no common name) under the Endangered Species Act of 1973, 
as amended (Act). Approximately 10.5 acres (ac) (4.3 hectares (ha)) 
fall within the boundaries of the critical habitat designation for C. 
melanocarpa in one unit located in Halfpenny Bay in Christiansted, St. 
Croix, U.S. Virgin Islands (USVI).

DATES: This rule becomes effective on September 27, 2007.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Caribbean Fish and 
Wildlife Office, Road 301 Km. 5.1, P.O. Box 491, Boquer[oacute]n, PR 
00622; telephone 787-851-7297; facsimile 787-851-7440.

SUPPLEMENTARY INFORMATION:

[[Page 49213]]

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this rule. For more information 
on Catesbaea melanocarpa, please refer to the final listing rule 
published in the Federal Register on March 17, 1999 (64 FR 13116), and 
the proposed rule to designate critical habitat published in the 
Federal Register on August 22, 2006 (71 FR 48883).

Previous Federal Actions

    On September 17, 2004, the Center for Biological Diversity filed a 
lawsuit against the Department of the Interior and the Service [Center 
for Biological Diversity v. Norton (CV-00293-JDB) (D.D.C.)], 
challenging the failure to designate critical habitat for Catesbaea 
melanocarpa. In a settlement agreement dated June 3, 2005, the Service 
agreed to reevaluate the prudency of critical habitat for this species 
and, if prudent, submit a proposed designation of critical habitat to 
the Federal Register by August 15, 2006, and a final designation by 
August 15, 2007. For more information on previous Federal actions 
concerning C. melanocarpa, refer to the proposed critical habitat 
designation published in the Federal Register on August 22, 2006 (71 FR 
48883), and in our notice of availability of the draft economic 
analysis published on March 14, 2007 (72 FR 11819). This final rule 
complies with the settlement agreement.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Catesbaea melanocarpa in the 
proposed rule published on August 22, 2006 (71 FR 48883), and again in 
a subsequent notice of the availability of a draft economic analysis 
published in the Federal Register on March 14, 2007 (72 FR 11819). We 
also contacted appropriate Federal, Commonwealth, and Territorial 
agencies; scientific organizations; local researchers; and other 
interested parties and invited them to comment on the proposed rule.
    The first comment period on the proposed designation opened August 
22, 2006 and closed on October 23, 2006. During that time, we received 
comments from three individuals: One from a peer reviewer working for 
the USVI government, and two from private individuals. We received one 
letter during the second comment period, opened from March 14 to April 
13, 2007, which covered both the proposed designation and the draft 
economic analysis. This comment letter was submitted by one of the 
private individuals who provided comments during the first comment 
period. In total, we received four comment letters from three 
individuals. One commenter supported the designation of critical 
habitat and one opposed the designation. The third commenter did not 
indicate support or opposition for the designation. We reviewed the 
comments for substantive issues and new information regarding critical 
habitat. We grouped the comments by issue and we addressed them in the 
following summary. We incorporated information into the final rule as 
appropriate. We did not receive requests for public hearings.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received a response from one peer 
reviewer representing the USVI Department of Planning and Natural 
Resources, Division of Fish and Wildlife (DPNR-FW). The peer reviewer 
did not mention if the DPNR-FW generally concurred or not with our 
methods and conclusions, but provided additional information and 
suggestions to improve the final critical habitat rule.

Peer Reviewer Comments

    Comment 1: The peer reviewer expressed concern that the description 
of the habitat in the proposed rule had lumped the habitat on USVI and 
Puerto Rico (PR) together, making it seem that there is much more 
habitat available for the plants. The peer reviewer suggested that the 
habitat description be differentiated between the islands.
    Our Response: The proposed rule published in the Federal Register 
on August 22, 2006 (71 FR 48883) described the habitat of Catesbaea 
melanocarpa in PR and the USVI separately. The description of the 
habitat in the Halfpenny Bay area was described based on the site-
specific soil type and the vegetation as observed by the Service in 
2006. The habitat characteristics of the site coincide with the 
previous habitat description referenced in the scientific literature. 
However, the introductory paragraph of the Habitat Description section 
provided a general discussion of the main characteristics of the 
subtropical dry forest life zone as described by Ewel and Whitmore 
(1973, pp. 10-20). The subtropical dry forest life zone covers the 
Halfpenny Bay area, as well as other areas where the species has been 
reported in the past and is currently present in Puerto Rico (Guanica 
Commonwealth Forest and Penones de Melones). The general description of 
the life zone does not substitute for the site-specific habitat 
description we provided in the proposed rule. Furthermore, the primary 
constituent elements (PCEs) for C. melanocarpa are based on the habitat 
components that are essential for the conservation of the species and 
not based on the life zones.
    Comment 2: The peer reviewer mentioned information received from 
Mr. Rudy O'Reilly, District Conservationist for the U.S. Department of 
Agriculture National Resources Conservation Service, about two 
individual plants of Catesbaea melanocarpa previously observed on a 
property located to the west of the proposed designation. The commenter 
specified that he did not investigate the sighting report to establish 
if the species is still present in the area. However, the commenter 
suggested including this new locality in the designation of critical 
habitat for C. melanocarpa.
    Our Response: We contacted Mr. O'Reilly, District Conservationist 
for the U.S. Department of Agriculture Natural Resources Conservation 
Service (NRCS) and requested additional information about the sighting 
mentioned by the peer reviewer. Mr. O'Reilly is the botanist who 
rediscovered the species in St. Croix in 1988. Mr. O'Reilly provided 
written information on January 23, 2007, and confirmed the information 
provided by the peer reviewer. Mr. O'Reilly explained that one plant of 
C. melanocarpa was observed during a casual drive-through on the west 
side of the South Shore Road (eastern boundary of the proposed critical 
habitat unit) in April, 2006. The area where the individual was 
observed is located outside of the proposed designation. Mr. O'Reilly 
mentioned that this location was the site where he first discovered the 
two individuals of C. melanocarpa reported in 1988, but that had been 
destroyed by a hurricane before the species was listed.
    At the time of listing, we described the population near 
Christiansted, St. Croix consisting of about 24 individual plants. This 
information was obtained from Breckon and Kolterman (1993, p. 2). These 
authors made reference to the individuals they found in July, 1992; and 
revisited in December, 1992, and June, 1993. They described the 
locality east of the existing road (the other side of the road in 
reference to the site where

[[Page 49214]]

O'Reilly discovered the original individuals in 1988). The authors 
estimated the population as about 24 individuals, described the size of 
the plants and documented the presence of flowers and fruits. When the 
Service was gathering information to draft the recovery plan for the 
species in 2002, we surveyed the population reported by Breckon and 
Kolterman (1993, pp.1-2), collected GPS points and estimated the 
population to be 100 individuals (Lombard 2002). The site where this 
population is found is located east of the existing road and 
corresponds to the site identified in the proposed rule (Halfpenny Bay 
area). Although Breckon and Kolterman (1993, pp. 1-2) made referenced 
to the individuals Mr. O'Reilly discovered in 1988, they mentioned that 
individuals were affected by Hurricane Hugo in 1989. These authors did 
not mentioned that they visited the individuals reported in the west 
side of the road and did not provide information supporting that the 
individuals were alive at the time they conducted their studies.
    Based on the above information and the information currently 
available to us, the individual referenced by the peer reviewer was not 
present at the time of listing. At the time of listing, the individuals 
first reported by Mr. O'Reilly in 1988 were considered extirpated by 
previous hurricanes. Mr. O'Reilly in his letter of January 23, 2007 
confirmed the information that the two individuals he discovered in 
1988 were destroyed by Hurricane Marilyn, and as a consequence the site 
was not considered occupied at the time of listing.
    Since the area was not occupied at the time of listing we would 
have to find it essential to the conservation of the species in order 
to designate it as critical habitat. Because the only evidence of the 
existence of the species at this location is a casual drive-by, and no 
surveys have recently been conducted in this area, we do not have 
enough information at this time to determine that the area is essential 
to the conservation of the species.
    Comment 3: The peer reviewer suggested mentioning in the rule that 
Catesbaea melanocarpa is protected by the Territorial law.
    Our Response: In the proposed rule for the designation of critical 
habitat for Catesbaea melanocarpa published in the Federal Register on 
August 22, 2006, we discussed topics directly relevant to the 
designation of critical habitat. However, we incorporated by reference 
the information of the listing final rule we published in the Federal 
Register on March 17, 1999 (64 FR 13116). In the listing rule, under 
the ``Summary of Factors Affecting the Species'' section, we stated 
that the territory of the USVI had amended its regulations to protect 
endangered and threatened wildlife and plants and considered Catesbaea 
melanocarpa to be endangered. In the listing rule, we referred to 
prohibitions by this local regulation under the ``Available 
Conservation Measures'' section.

Public Comments Related to the Designation

    Comment 1: The commenter believes that the area to be designated as 
critical habitat was based on the ownership of private property rather 
than the location of the species. The commenter provided a color aerial 
photo of the site.
    Our Response: The Halfpenny Bay is currently occupied by 
approximately 100 individuals of C. melanocarpa. With the assistance of 
the aerial photo provided by the commenter, we re-examined the 
boundaries of the proposed area and removed from the designation highly 
degraded areas dominated by pastures located south of Road 62. We also 
redefined the boundaries utilizing GPS-located sightings of individuals 
collected by Service personnel within the property (Lombard 2002). The 
areas within the redefined boundaries meet the criteria we used to 
designate critical habitat. We also confirmed that the area occupied by 
the species contains the PCEs essential for the conservation of the 
species. Therefore, we reduced the size of the designated critical 
habitat to 10.5 ac (4.3 ha).
    Comment 2: The commenter mentioned information received from Mr. 
Rudy O'Reilly about one Catesbaea melanocarpa plant previously observed 
in a property located to the west of the proposed designation. The 
commenter recommended we conduct additional research and prepare the 
planned 5-year review of the status of the species before finalizing 
the proposed designation of critical habitat.
    Our Response: The presence of one individual in a site located west 
of the proposed designation was also documented by the peer reviewer. 
We responded to comments under Peer Reviewer Comment 2. We initiated 
the 5-year review process for Catesbaea melanocarpa on September 27, 
2006 (71 FR 56545), and requested information and comments from the 
public. The purpose of the 5-year review is to ensure that the 
classification of species as threatened or endangered of the Lists of 
Endangered and Threatened Wildlife and Plants (50 CFR 17.11 and 17.12) 
is accurate. A 5-year review is an assessment of the best scientific 
and commercial data available at the time of the review. It does not 
include additional research on the species.
    Comment 3: The commenter believes that the designation will destroy 
the property's economic value and result in a ``taking'' of private 
property.
    Our Response: The designation of critical habitat does not mean 
that private lands would be taken by the Federal Government or 
continued private uses would not be allowed. The designation of 
critical habitat does not affect private lands if there is no Federal 
nexus in other words, if the landowner does not need a Federal permit 
or other Federal approval, or Federal funding, for his activities, then 
the designation will impose no Federal restriction on his property. If 
a species is listed or critical habitat is designated, section 7(a)(2) 
of the Act requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical habitat. All regulatory effect of the designation of 
critical habitat comes from this requirement. Therefore, if a Federal 
permit or approval is not required, or if Federal funding is not 
involved, there will be no regulatory burden for actions on private 
lands.
    If there is a Federal action that may affect a listed species or 
its critical habitat, the responsible Federal agency must enter into 
consultation with us. When we issue a biological opinion we can include 
measures to reduce take of the species, or measures to offset any 
actions that would jeopardize the existence of the species or adversely 
modify critical habitat. Such measures must be consistent with the 
scope of the Federal agency's legal authority and jurisdiction, and 
must also be economically and technologically feasible.
    The parcel that includes the critical habitat designation is 
currently zoned as District 2: Low Intensity, which permits low-density 
residential construction and small-scale agriculture. This zoning 
category allows a maximum of four residential units per acre for single 
and multi-family construction and a maximum of six units per acre for 
larger-scale condominium or hotel development. This zoning category 
does not prohibit development of the site.
    We anticipate that any potential development could go forward on 
this site even if there was a Federal nexus. If we consulted on the 
site were would likely propose recommended conservation measures for 
the plants. We have identified likely recommended

[[Page 49215]]

measures, which would include establishing a buffer zone of 20 meters 
(m) (66 feet (ft)) around the existing population as a setback from the 
development. The buffer zone is included in the designation, and the 
total area to be designated is approximately 10.5 ac (4.3 ha). Given 
the size of the parcel and location of the plants, it is unlikely that 
the setback would significantly affect development plans.

Public Comments Related to the Economic Analysis

    Comment 1: The commenter requested an extension of the public 
comment period opened on March 14, 2007, for a minimum of 60 days to 
provide additional time for the owner of the land to effectively 
respond to the proposed rule.
    Our Response: We provided two comment periods, totaling 90 days, 
for the designation of critical habitat for Catesbaea melanocarpa 
between August 2006 and April 2007. Additionally, we contacted the 
commenter in February 2006 to request permission to visit the site, and 
we provided information about the proposed designation. Service 
biologists met with the commenter on March 1, 2006, and provided 
information about critical habitat.
    Comment 2: The commenter requested the postponement or termination 
of the rulemaking process until legal review is made. He also suggests 
we should investigate opportunities to conserve the species on 
government-owned lands.
    Our Response: We have a statutory obligation to designate critical 
habitat, and we are operating under a settlement agreement that 
requires us to finalize this designation by August 15, 2007. We are 
finalizing this rule in compliance with applicable legal standards.
    Regarding opportunities to conserve the species on government-owned 
lands, the species is not currently present on government-owned lands 
in the USVI. The recovery plan identifies the establishment of a 
propagation program as the top priority for the recovery of the 
species. Once the appropriate propagation techniques are established 
and necessary funding allocated, we would direct our efforts toward the 
establishment of self-sustainable populations on protected lands. The 
recovery plan also identifies the need to establish conservation 
agreements with private landowners to provide protection to the 
existing individuals and their habitat in the USVI.
    Comment 3: The commenter believes that the economic impact of 
designation would not range from $132,300 to $441,000 over 20 years, as 
discussed in the draft economic analysis, but rather would range from 
$630,000 to $2,100,000 over 20 years.
    Our Response: The commenter confused the economic impact of the 
critical habitat designation with the assessment of the market value 
for the site. The draft economic analysis summarized the procedure 
taken to assess the market value of the property. Exhibit 2 of the 
draft economic analysis included the market value per acre of the 
proposed designated area, which ranges from $630,000 to $2,100,000. The 
economic impact of the designation was based on conservation 
recommendations we would provide as technical assistance to a developer 
to conserve the species within the property, if a development project 
is proposed. The conservation measures would include establishing a 
buffer zone of 20 meters (m) (66 feet (ft)) around the existing 
population as a setback from the development. The buffer zone is 
included in the designation, and the total area to be designated is 
approximately 10.5 ac (4.3 ha). The calculation of the economic impact 
of the designation to the landowner was based on the implementation of 
this conservation measure and ranged from $132,000 to $441,000 over 20 
years.
    Comment 4: The commenter stated that the draft economic analysis 
recommends a modification to the designation, specifically limiting the 
proposed designation to 21 percent of the property.
    Our Response: With the assistance of the aerial photo provided by 
the commenter during the comment period, we reexamined the boundaries 
of the proposed area and removed highly degraded areas dominated by 
pastures located south of Road 62. We also redefined the boundaries 
utilizing GPS recorded sightings of individuals collected by Service 
personnel within the property (Lombard 2002). We verified that these 
redefined areas meet both criteria we are utilizing to designate 
critical habitat, they are occupied by the species and they support the 
PCEs essential for the conservation of the species. We reduced the size 
of the designated critical habitat to 10.5 ac (4.3 ha).
    Comment 5: The commenter stated that the draft economic analysis 
incorrectly states that the site is not being used for agriculture and 
that the site is currently subject to an agricultural lease. The 
commenter mentioned that the site is subject to periodic grazing, which 
reduces the fire hazard and is beneficial for the protection of the 
species. The commenter interpreted the proposed designation as 
prohibiting agricultural activities in the area and stated that this 
would adversely affect the prospects of this population's survival.
    Our Response: The draft economic analysis stated that the property 
proposed for critical habitat was no longer used for grazing 
activities. The revised analysis states: ``The property is subject to 
an agricultural lease that has not been terminated, and is periodically 
grazed by livestock. The owner notes that this grazing activity reduces 
the threat of brush fires and may benefit the species.''

Comments From the Territory of the USVI

    Section 4(i) of the Act states that ``the Secretary shall submit to 
the State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' 
Comments received from Territorial agencies (USVI Department of 
Planning and Natural Resources, Division of Fish and Wildlife) 
regarding the proposal to designate critical habitat for Catesbaea 
melanocarpa are addressed in the Peer Reviewer Comments section.

Summary of Changes From Proposed Rule

    On the basis of comments received on the proposed rule and the 
draft economic analysis, we have developed our final designation of 
critical habitat for Catesbaea melanocarpa. Specifically, we adjusted 
the boundaries of the proposed critical habitat designation to remove 
the areas that were dominated by pastures, and as such did not contain 
the first primary constituent element and the area not currently 
occupied by the species. This adjustment resulted in the removal of 
39.5 ac (16 ha) from the original boundaries and a final designation of 
10.5 ac (4.3 ha). The boundaries of the designation were refined by 
utilizing an aerial photograph provided during the public comment 
period for the proposed rule and a layer created in GIS with the GPS 
readings of the sightings of the approximately 100 plants in the area. 
We used a 100-meter grid to establish Universal Transverse Mercator 
(UTM) North American Datum 27 (NAD 27) coordinates that, when 
connected, provided the boundaries of the critical habitat for 
Catesbaea melanocarpa.
    In the proposed rule published on August 22, 2006 (71 FR 48883), we 
stated that the Gu[aacute]nica and the Sus[uacute]a Commonwealth 
Forests in PR were not

[[Page 49216]]

included in the proposed designation because they are adequately 
protected under the management of the DNER and the master plan for the 
forests, and therefore do not require special management or protection. 
Under section 3(5)(A) of the Act, an area that was occupied at the time 
of listing on which are found those physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection meets the definition of 
critical habitat. We have determined that these areas do meet the 
definition of critical habitat as there are additional management 
actions beyond those already in effect, that can be taken to conserve 
the plants in these areas. However, we believe the forests have 
management plans that appropriately address the conservation needs of 
the species and therefore minimize any benefits of designation (see 
``Exclusions Under Section 4(b)(2)'' below). Thus, we are invoking the 
Secretary's discretion to exclude the two forests under section 4(b)2 
of the Act, after taking into consideration the efforts by the 
Commonwealth of Puerto Rico to protect habitat under its jurisdiction.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, means 
``to use and the use of all methods and procedures which are necessary 
to bring any endangered species or threatened species to the point at 
which the measures provided under the Act are no longer necessary.'' 
Such methods and procedures include, but are not limited to, all 
activities associated with scientific resources management, such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (areas where PCEs are found, 
as defined at 50 CFR 424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. As discussed below, 
such areas may also be excluded from critical habitat under section 
4(b)(2) of the Act. Areas outside of the geographical area occupied by 
the species at the time of listing may only be included in critical 
habitat if they are essential to the conservation of the species. 
Accordingly, when the best available scientific data do not demonstrate 
that the conservation needs of the species require additional areas, we 
will not designate critical habitat in areas outside the geographical 
area occupied by the species at the time of listing. However, an area 
that is currently occupied by the species, but which was not known at 
the time of listing to be occupied, will likely, but not always, be 
essential to the conservation of the species and, therefore, considered 
for inclusion in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service, provide criteria, establish procedures, and provide guidance 
to ensure that decisions made by the Service represent the best 
scientific data available. They require Service biologists, to the 
extent consistent with the Act and with the use of the best scientific 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information is generally the listing package for the species. 
Additional information sources include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge. All information is used in 
accordance with the provisions of Section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations of Catesbaea melanocarpa, but are 
outside the critical habitat designation, will continue to be subject 
to conservation actions implemented under section 7(a)(1) of the Act 
and to the regulatory protections afforded by the section 7(a)(2) 
jeopardy standard, as determined on the basis of the best available 
information at the time of the action. Section 7(a)(1) directs all 
other Federal agencies to utilize their authorities in furtherance of 
the purposes of the Act by carrying out programs for the conservation 
of listed species. Federally funded or permitted projects affecting 
listed species outside their designated critical habitat areas may 
still result in jeopardy findings in some cases. Similarly, critical 
habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if

[[Page 49217]]

new information available to these planning efforts calls for a 
different outcome.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to designate as critical 
habitat within areas occupied by the species at the time of listing, we 
consider those physical and biological features that are essential to 
the conservation of the species (PCEs), and which may require special 
management considerations and protection. These include, but are not 
limited to: space for individual and population growth and for normal 
behavior; food, water, air, light, minerals, or other nutritional or 
physiological requirements; cover or shelter; sites for breeding, 
reproduction, rearing (or development) of offspring, germination, or 
seed dispersal; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    The specific PCEs required for Catesbaea melanocarpa are derived 
from the biological needs of this plant species and include those 
habitat components needed for growth and development, flower 
production, pollination, seed set and fruit production, and genetic 
exchange. Although at the present time the information on the species' 
biological and ecological needs is limited (USFWS 2005, p. 7), habitat 
characteristics supporting all three currently known localities are 
known. Additionally, individuals in all three localities have been 
documented in fruit or flower. The presence of sexual reproduction 
indicates that the species has the potential to produce viable 
populations, with the assistance of appropriate conservation 
strategies.
    Catesbaea melanocarpa is currently known from both the subtropical 
dry forest and subtropical moist forest life zones of PR and the USVI. 
Except for one locality, the historical and current range of the 
species is within dry forest life zone. The Sus[uacute]a Commonwealth 
Forest is the only locality that is not dry forest; however, based on 
our observations because of its serpentine soils, the vegetation 
structure and species composition are similar to dry forest habitat 
(Breckon and Garc[iacute]a 2001; Silander et al. 1986, p. 243). In all 
three localities, the species is under the canopy of trees and shrubs, 
and all localities in PR are forested hills associated with either 
limestone or serpentine soils. The locality in St. Croix, based on 
Service observations, is on a coastal plain with patches or thickets of 
trees and shrubs characteristic of dry forest habitat.
    Within the subtropical dry and moist forest life zones, Catesbaea 
melanocarpa has been reported from four discrete sites within the U.S. 
Caribbean: Halfpenny Bay, Pe[ntilde]ones de Melones, the Gu[aacute]nica 
Commonwealth Forest, and the Sus[uacute]a Commonwealth Forest. However, 
the species presently occupies only Halfpenny Bay in St. Croix, USVI, 
the Gu[aacute]nica Commonwealth Forest, PR, and the Sus[uacute]a 
Commonwealth Forest, PR.
    Vegetation at the Halfpenny Bay site is comprised of dry thicket 
scrub vegetation, dominated by grasses with patches of trees and shrubs 
(USFWS 2005, pp. 6-7). Based on Service observations during a site 
visit conducted on March 1 and 2, 2006, Catesbaea melanocarpa is an 
understory species, currently growing below trees and shrubs 
characteristic of dry forest habitat. Associated flora include 
introduced grass species, Caesalpinia coriaria (dividive), Tamarindus 
indica (tamarind), Castela erecta (goat-bush), Acacia turtuosa 
(acacia), Cassia poplyphylla (retama prieta), Leucaena leucocephala 
(tan-tan), Randia aculeata (box-briar or tintillo), and Cordia alba 
(white manjack). Soils in the Halfpenny Bay site have been described as 
belonging to the Glynn-Hogensborg unit, which consists of very deep, 
well drained, nearly level to moderately steep soils (NRCS 1998, pp. 
63-64).
    We observed the vegetation within the Gu[aacute]nica Commonwealth 
Forest locality in 2006 as dry forest with semi-closed canopy on 
limestone soils. The species is found under the canopy. In this forest 
type, trees often reach 33 ft (10 m). Some associated dry forest 
vegetation in this locality include Coccoloba microstachya (uvillo), C. 
diversifolia (uvilla), Thouinia portoricensis (quebracho), Guettarda 
elliptica (cucubano liso), Croton lucidus (alhel[iacute]), Savia 
sessiliflora (amansa guapo), Pithecellobium unguis-cati (u[ntilde]a de 
gato), Guaiacum sanctum (guayacan), Leucaena leucocephala (zarcilla), 
among other common species (Trejo-Torres 2001, pp. 59-63).
    Sus[uacute]a Commonwealth Forest is located in southwestern Puerto 
Rico in the municipalities of Yauco and Sabana Grande. The Sus[uacute]a 
Forest lies between the humid Central Cordillera and the dry coastal 
plains typical of the south coast. The forest represents not only the 
influence of a climatic transition zone (dry to moist), but also a 
combination of volcanic and serpentine soils (Department of Natural 
Resources 1976, p. 24). The majority of the forest (90 percent) is 
underlain by serpentine outcrop. The rest of the forest (10 percent) 
has nine other soil types that belong to the Caguabo-M[uacute]caro 
association (Silander et al. 1986, pp. 224-226; Soil Conservation 
Survey 1975, p. 9). These soils are described as slightly leached, 
loamy and clay, sticky and plastic soils underlain by hard or weathered 
rock at a depth of less than 30 inches (Soil Conservation Survey 1975, 
p. 9). Serpentine-derived soils create stressful conditions for the 
establishment and growth of plants, and their associated floras are 
characterized by high diversity and endemism (Cede[ntilde]o-Maldonado 
and Breckon 1996, p. 348). Two vegetation associations (dry slope 
forest and gallery forest) have been delineated in the subtropical 
moist life zone (Department of Natural Resources 1976, p. 224). The 
trees are slender, open-crowned, and usually less than 39.4 ft (12 m) 
tall. The forest floor is open because the excessively drained soil 
supports little herbaceous growth (Ewel and Whitmore 1973, p. 25). 
Catesbaea melanocarpa is found in the dry slope forest type. The 
climatic conditions and serpentine-derived soils contribute to more 
xeric conditions and a forest structure and species composition similar 
to the Gu[aacute]nica Commonwealth Forest based on observations by the 
Service and others (Silander et al. 1986, pp. 239-245; Breckon and 
Garc[iacute]a 2001).

Primary Constituent Elements for Catesbaea melanocarpa

    The area designated as critical habitat for Catesbaea melanocarpa 
is occupied, is within the species' current and historic geographic 
range, and contains sufficient primary constituent elements (PCEs) to 
support at least one of the plant's life-history functions. Based on 
our current knowledge of the species and the requirements of the 
habitat to sustain the essential life-history functions of the species, 
as discussed above, we have determined that the PCEs for C. melanocarpa 
are:
    (1) Single-layered canopy forest with little ground cover and open 
forest floor that supports patches of dry vegetation with grasses, and
    (2) Well to excessively drained, limestone and serpentine-derived 
soils (including soils of the San Germ[aacute]n, Nipe, and Rosario 
series and Glynn and Hogensborg series).
    Open forest floor, canopy, and little ground cover are important 
requirements for an understory species like Catesbaea melanocarpa. The 
canopy provides shade, and the open forest floor reduces competition by

[[Page 49218]]

herbaceous species. Limestone and serpentine-derived soils that are 
well to excessively drained provide essential nutrients to this plant 
and sustain the dry conditions needed by the species. This designation 
is designed for the conservation of areas supporting PCEs necessary to 
support the life-history functions that were the basis for the 
proposal. The area designated as critical habitat in this rule has been 
determined to contain sufficient PCEs to support one or more of the 
life-history functions of C. melanocarpa.

Criteria Used To Identify Critical Habitat

    As required by section 4 of the Act, we used the best scientific 
data available in determining areas that contain the features that are 
essential to the conservation of Catesbaea melanocarpa. We began our 
analysis by considering the historic distribution of the species and 
sites occupied by the species at the time of listing. The 1999 listing 
rule (64 FR 13116) identified two localities occupied by the species 
within the U.S. jurisdiction: a 50-ac (20-ha) privately owned parcel in 
Halfpenny Bay in St. Croix, USVI; and a 330-ac (132-ha) property in 
Pe[ntilde]ones de Melones in Cabo Rojo, PR. Both localities are found 
within the subtropical dry forest life zone and support habitat for the 
species. The final listing rule identified two historic collections: 
one in Gu[aacute]nica, PR, in 1886, and one in Sus[uacute]a 
Commonwealth Forest, PR, in 1974. The Gu[aacute]nica Commonwealth 
Forest is within the subtropical dry forest life zone, and Sus[uacute]a 
Commonwealth Forest is considered within the moist forest life zone. 
However, the Sus[uacute]a Commonwealth Forest supports slopes with dry 
forest vegetation due to the climatic conditions and soil type. Both 
forests are similar in forest structure and species composition. 
Although both forests support habitat for C. melanocarpa, the presence 
of the species within these two forests was not corroborated at the 
time of listing. The rule noted that the Sus[uacute]a specimen could 
not be confirmed as C. melanocarpa because of its poor condition (64 FR 
13116, March 17, 1999; Breckon and Kolterman 1993, p. 1).
    We reviewed the approved recovery plan to identify new records of 
occupancy of the species, biological information, and habitat 
characteristics (USFWS 2005, pp. 3-8). The plan identifies both 
downlisting and delisting criteria and emphasizes the importance of 
protecting existing populations within the range of this plant to 
prevent its extinction, decrease the threat to the species associated 
with catastrophic events, and to obtain sexual (seeds) and asexual 
(cuttings) propagation material to establish a propagation program for 
the species. The plan includes information provided by a peer reviewer 
during the comment period showing a recent collection of Catesbaea 
melanocarpa located at the Gu[aacute]nica Commonwealth Forest. This 
forest is located within the previously known distribution of the 
species and supports a historic collection of C. melanocarpa. A voucher 
of this collection is located in the herbarium of the University of 
Puerto Rico (UPR 2006).
    We also reviewed other information (such as sighting records from 
herbariums, Department of Natural and Environmental Resources (DNER) 
maps, and office files) and scientific literature and reports to 
identify additional information available on species range and 
biological needs. The Service contacted all researchers that have 
reported the species in recent years and visited all reported sites; 
they confirmed sightings at all sites except the west side of the South 
Shore Road, which is outside of the designation. Herbarium records for 
Gu[aacute]nica and Pe[ntilde]ones de Melones describe the species 
growing in low forest or the understory of dry forest vegetation in 
limestone soils. The herbarium voucher for the species in Sus[uacute]a 
describes the species growing in low forest on serpentine soils (Trejo-
Torres 2003). Vegetation characteristics, climatic conditions, and soil 
type coincide with the previously described habitat for the species. We 
confirmed sightings in St. Croix and Gu[aacute]nica Commonwealth 
Forest. Although additional forested areas within the dry forest life 
zone and the moist forest life zone are present in PR and USVI, no 
additional sightings for the species have been reported in these other 
areas.
    The only areas considered for designation were those that either 
(1) were occupied at the time of listing (as a population or an 
occurrence) and possess sufficient PCEs to support the life history 
functions, or (2) were not occupied at the time of listing but are 
essential to the conservation of the species. Information gathered by 
the Service and data collected during field visits resulted in the 
consideration of only three discrete areas in the U.S. Caribbean.
    The Halfpenny Bay area was occupied at the time of listing and 
continues to be occupied. This area contains features that are 
essential to the conservation of Catesbaea melanocarpa that may require 
special management or protection. Another area that was occupied at the 
time of listing, located in Pe[ntilde]ones de Melones in Cabo Rojo, PR, 
is not currently occupied by the species and has lost PCEs due to 
periodic land-clearing activities with heavy machinery; it is not being 
designated as critical habitat due to the lack of PCEs and the lack of 
conservation value for the species.
    The Gu[aacute]nica and Sus[uacute]a Commonwealth forests have 
current and historical records of the species presence. The presence 
has been documented based on recent reports (Trejo-Torres 2001, p. 62; 
Trejo-Torres 2003; 2006) and site visits conducted by the Service in 
2006.
    These three areas (Halfpenny Bay and both Commonwealth forests) 
represent all known populations of this species in the wild within U.S. 
jurisdiction (currently known to be fewer than 115 individuals). 
Protecting individuals in the three localities is vital to maintain 
genetic representation of all known localities in the U.S. Caribbean. 
We have determined that it is essential to prevent extinction of this 
plant by protecting and securing existing populations, establishing a 
propagation program, augmenting existing populations with propagated 
individuals, and establishing new self-sustainable populations in 
protected areas (USFWS 2005). We believe all three currently occupied 
areas presently contain essential habitat features for the species.
    We reviewed existing management and conservation plans and 
management actions for Catesbaea melanocarpa to determine if any of the 
areas identified above that contained features essential to the 
conservation of the species could be excluded under section 4(b)(2) of 
the Act. On the basis of this review, we believe that essential 
features within both Commonwealth Forests are adequately managed and 
protected under the management of Puerto Rico DNER. Accordingly, while 
these areas collectively total 14,575 ac (5,898 ha) and contain the 
habitat features that are essential to the conservation of the species, 
they are excluded from this designation because they are being 
adequately managed as wildlife sanctuaries by DNER, where they are 
protecting wildlife and plants in perpetuity and allowing only 
nonconsumptive use by the public in designated areas and trails (see 
Application of section 4(b)(2) of the Act below).
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as buildings, paved areas, and 
other

[[Page 49219]]

structures that lack PCEs for Catesbaea melanocarpa. The scale of the 
maps prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
areas. Any such structures and the land under them inadvertently left 
inside critical habitat boundaries shown on the maps of this final rule 
have been excluded by text in the final rule and are not designated as 
critical habitat. Therefore, Federal actions limited to these areas 
would not trigger section 7 consultation, unless they affect the 
species or primary constituent elements in adjacent critical habitat.
    The area of approximately 10.5 ac (4.3 ha) identified within the 
Halfpenny Bay area meets all criteria used to identify critical 
habitat: The site was occupied at the time of listing and contains 
sufficient PCEs to support the life-history functions essential for the 
conservation of the species that are in need of special management and 
protection. A brief discussion of the Halfpenny Bay area is provided in 
the unit description below. Additional detailed documentation 
concerning the essential nature of this area is contained in our 
documentation record for this rulemaking.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain the PCEs that 
may require special management considerations or protection. As 
discussed in this section and in the unit description below, we find 
that all of the PCEs in Halfpenny Bay may require special management 
considerations or protection due to threats to the species or its 
habitat from periodic but intense grazing, human-induced fires, and 
potential development for a tourist project (USFWS 2005, p. 8). Such 
management considerations and protections include fencing off forest 
patches to exclude cattle, developing fire-breaks adjacent to existing 
roads and farm boundaries during dry season, and establishing 
conservation agreements with landowners to protect habitat within the 
property.

Critical Habitat Designation

    We are designating one unit in the Halfpenny Bay area in 
Christiansted, St. Croix, USVI as critical habitat for Catesbaea 
melanocarpa. This critical habitat area described below (see Table 1) 
constitutes our best assessment at this time of areas determined to be 
occupied at the time of listing, that contain the PCEs that are 
essential for the conservation of the species, and that may require 
special management considerations or protection. Appropriate management 
and protection will support reproduction, recruitment, adaptation to 
catastrophic events, and genetic diversity (Primack 2000, pp. 124-133; 
Falk et al. 1996, pp. 113-119) as identified using the best available 
data.

Table 1.--Lands Determined To Meet the Definition of Critical Habitat for Catesbaea melanocarpa, Land Ownership,
                                       Approximate Area (acres, hectares).
----------------------------------------------------------------------------------------------------------------
                                                                                 Areas meeting the definition of
       Critical habitat unit, location                  Land ownership               critical habitat acres
                                                                                           (hectares)
----------------------------------------------------------------------------------------------------------------
Halfpenny Bay, St. Croix, USVI...............  Private........................                        10.5 (4.3)
    Total....................................  ...............................                        10.5 (4.3)
----------------------------------------------------------------------------------------------------------------

    Presented below is a brief description and rationale for the 
designated critical habitat for Catesbaea melanocarpa.

Halfpenny Bay, St. Croix

    The Halfpenny Bay critical habitat area consists of an area of 
approximately 10.5 ac (4.3 ha) on a privately owned agricultural tract 
located in a dry coastal plain about 2.48 miles (4 km) south of 
Christiansted, St. Croix, USVI. This unit encompasses the habitat 
features essential to the conservation of Catesbaea melanocarpa and 
does not contain manmade structures, such as existing private homes or 
barns. The species is located within dry thickets of scrub vegetation 
in this unit, which is dominated by grasses with patches of trees and 
shrubs. The unit contains both PCEs and is important to conserving the 
genetic diversity of this plant. Since this is the locality with the 
highest number of individuals (100 plants), we believe that it should 
be considered the core population to maintain genetic representation of 
this plant in the U.S. Caribbean.
    At the time of the 1999 listing, the population was estimated at 24 
individuals, but in 2002 the population was estimated at 100 
individuals (Lombard 2002). The presence of the species at this site 
was confirmed by the Service in March 2006. This USVI population has 
the highest number of plants and has been documented in its 
reproductive condition (with fruit and flowers). The site and the PCEs 
contained thereon are currently threatened by periodic but intense 
grazing, human-induced fires, potential development for a tourist 
project (USFWS 2005, p. 8), and may require special management 
considerations and protection as discussed in the ``Special Management 
Considerations or Protections'' section above.

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent court decisions have invalidated this 
definition (see Gifford Pinchot Task Force v. U.S. Fish and Wildlife 
Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish 
and Wildlife Service et al., 245 F. 3d 434, 442 (5th Cir. 2001)). 
Pursuant to current national policy and the statutory provisions of the 
Act, destruction or adverse modification is determined on the basis of 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain the 
current ability for the primary constituent elements to be functionally 
established) to serve the intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations

[[Page 49220]]

implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report, while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) a concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat.
    Federal activities that may affect Catesbaea melanocarpa or its 
designated critical habitat will require section 7 consultation under 
the Act. Activities on State, Tribal, local or private lands requiring 
a Federal permit (such as a permit from the Corps under section 404 of 
the Clean Water Act or a permit under section 10 of the Act from the 
Service) or involving some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency) will also be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, Tribal, local or 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to Catesbaea melanocarpa and Its Critical 
Habitat

Jeopardy Standard
    When performing jeopardy analysis for Catesbaea melanocarpa, the 
Service applies an analytical framework that relies heavily on the 
importance of core area populations to the survival and recovery of 
this plant. The section 7(a)(2) analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of Catesbaea melanocarpa in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is considered to be warranted, because of the relationship of 
each core area population to the survival and recovery of the species 
as a whole.
Adverse Modification Standard
    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would remain functional (or retain the 
current ability for the primary constituent elements to be functionally 
established) to serve its intended conservation role of the critical 
habitat unit for this plant is to support viable core area populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for Catesbaea melanocarpa is appreciably reduced. 
Activities that, when carried out, funded, or authorized by a Federal 
agency, may affect critical habitat and therefore result in 
consultation for C. melanocarpa include, but are not limited to:
    (1) Actions that would reduce or degrade dry thicket scrub areas

[[Page 49221]]

dominated by patches of trees and shrubs in the Halfpenny Bay area. 
Such activities could include vegetation clearing, intensive and 
extensive cattle grazing activities, and fire. Dry forest species in 
the Caribbean are not fire-resistant species.
    (2) Earth movement activities using heavy machinery within critical 
habitat that may result in changes in quantity and quality of soils 
within designated critical habitat.
    We consider the area designated as critical habitat, as well as 
those that were excluded, to contain features essential to the 
conservation of Catesbaea melanocarpa. The designated area is within 
the geographic range of the species, was occupied by the species at the 
time of listing (64 FR 13116, March 17, 1999; Proctor 1991, pp. 43-44; 
Breckon and Kolterman 1993, p. 1), and is currently occupied by the 
species. Federal agencies already consult with us on activities in 
areas currently occupied by C. melanocarpa, or if the species may be 
affected by the action, to ensure that their actions do not jeopardize 
the continued existence of C. melanocarpa.

Application of Section 3(5)(A) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographic area occupied by the species at the time of 
listing on which are found those physical and biological features (i) 
essential to the conservation of the species and (ii) which may require 
special management considerations or protection. Therefore, areas 
within the geographical area occupied by the species at the time of 
listing that do not contain the features essential for the conservation 
of the species are not, by definition, critical habitat. Similarly, 
areas within the geographic area occupied by the species at the time of 
listing that do not require special management or protection also are 
not, by definition, critical habitat. Following a review of all areas, 
we have determined that each area meets the definition of critical 
habitat.
    There are multiple ways to provide management for species habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans as well as 
management under Federal agencies' jurisdictions can provide protection 
and management to avoid the need for designation of critical habitat. 
When we consider a plan to determine its adequacy in protecting 
habitat, we consider whether the plan, as a whole, will provide the 
same level of protection that designation of critical habitat would 
provide. The plan need not lead to exactly the same result as a 
designation in every individual application, as long as the protection 
it provides is equivalent, overall. In making this determination, we 
examine whether the plan provides management, protection, or 
enhancement of the PCEs that is at least equivalent to that provided by 
a critical habitat designation, and whether there is a reasonable 
expectation that the management, protection, or enhancement actions 
will continue into the foreseeable future. Each review is particular to 
the species and the plan, and some plans may be adequate for some 
species and inadequate for others.

Application of Section (4)(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habit